State of Oregon · NEDC envisions a future in which Oregon leads the nation in developing,...

December 20, 2019

Kathleen George, Chair

Oregon Environmental Quality Commission

700 NE Multnomah St, Suite 600

Portland, Oregon 97232

Re: Petition to Promulgate Indirect Source Rules

Dear Chair George:

Since at least 2012, the Oregon Department of Environmental Quality (DEQ) has identified diesel

pollution as a major threat to human health and the environment. DEQ has also proposed several

strategies to reduce diesel emissions, but the majority of these recommendations have not been

implemented. Pursuant to ORS 183.390 and OAR 137-001-0070, Petitioners request that the

Environmental Quality Commission (EQC) adopt the rule language proposed herein to reduce emissions

from indirect sources.

On behalf of 21 co-petitioners, Melissa Powers, on behalf of the Green Energy Institute at Lewis &

Clark Law School (GEI), Mark Riskedahl, on behalf of the Northwest Environmental Defense Center

(NEDC), and Mary Peveto, on behalf of Neighbors for Clean Air (Neighbors), hereby submit this

Petition for Agency Rulemaking to the EQC.

Petitioner GEI is an energy and climate policy institute within Lewis & Clark Law School’s

environmental, natural resources, and energy law program. GEI’s mission is to develop comprehensive

legal and policy strategies to advance a swift transition to a fully decarbonized energy system. GEI

supports the adoption of air quality regulations that protect human health and reduce negative climate

impacts by preventing emissions of black carbon, a type of fine particulate matter that has a

disproportionate impact on global temperatures.

Petitioner NEDC is an independent, non-profit organization dedicated to preserving and protecting the

natural environment of the Pacific Northwest. NEDC envisions a future in which Oregon leads the

nation in developing, implementing, and enforcing strong laws and regulations that protect the

environment and human health. NEDC has a long history of advocacy for improved air quality in

Oregon.

Petitioner Neighbors is a non-profit organization whose mission is to create a healthier Oregon by

reducing harmful air pollution. Neighbors believes that Oregonians have a right to know what is in the

air we breathe, and that an engaged and well-informed public working closely with community

organizations, government agencies, and businesses is our most powerful tool in bringing about

fundamental change in our laws and enforcement programs to reduce air toxics. Neighbors seeks to

reduce short- and long-term exposure of Oregonians to air toxics in order to achieve safer air and a

higher quality of life.

Attachment A Jan. 23-24, 2020, EQC meeting of 726

Item M 000007

Accompanying this letter are a list of the co-petitioners, proposed rule language and the petition, and

documents available through this Google drive,

https://drive.google.com/drive/folders/1HZoKo4_iJriKbgfhVis6IIIs8DG0PHCe,

that provide greater detail about the risks of diesel emissions and why indirect source rules are necessary

to reduce harmful emissions.

Thank you for considering this request.


Item M 000008

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BEFORE THE OREGON ENVIRONMENTAL QUALITY COMMISSION

Petition to Adopt Rules Regarding Indirect Sources of Air Pollution

December 20, 2019

Pursuant to OAR 137-001-0070 and OAR 340-011-0046, and the following supporting facts and arguments, we petition the Oregon Environmental Quality Commission to promulgate a new rule pertaining to regulation of emissions of air pollutants from Indirect Sources. Petitioners Green Energy Institute at Lewis & Clark Law School, Northwest Environmental Defense Center, and Neighbors for Clean Air have signed on behalf of all co-petitioners.

As per OAR 137-001-0070(1), petitioners are:

Green Energy Institute at Lewis & Clark Law School 10015 SW Terwilliger Blvd. Portland, OR 97219 [email protected] [email protected] Northwest Environmental Defense Center Lewis & Clark Law School 10015 SW Terwilliger Blvd. Portland, OR 97219 [email protected] [email protected] Neighbors for Clean Air P.O. Box 10544 Portland, OR 97296 [email protected] Beyond Toxics P.O. Box 1106 Eugene, OR 97440 [email protected] Center for Biological Diversity P.O. Box 11374 Portland, OR 97211 [email protected] Center for Sustainable Economy P.O. Box 393 West Linn, OR 97068 [email protected]


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Climate Solutions 222 NW Davis St, Suite 300 Portland, OR 97209 [email protected] Columbia Riverkeeper 1125 SE Madison St, Suite 103A Portland, OR 97214 [email protected] Earthjustice Northwest Regional Office 810 Third Ave., Suite 610 Seattle, WA 98104 [email protected] Environment Oregon 1536 SE 11th Ave, Suite B Portland, OR 97214 [email protected] Forest Park Conservancy 833 SW 11th Ave, Suite 800 Portland, OR 97205 [email protected] Friends of Mount Hood P.O. Box 3098 Clackamas, OR 97015 [email protected] Green Lents 12707 NE Halsey St. Portland, OR 97230 [email protected] OPAL 2788 SE 82nd Ave. Portland, OR 97266 [email protected] Oregon Chapter of the Sierra Club 1821 SE Ankeny St. Portland, OR 97214 [email protected]


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Oregon Environmental Council 222 NW Davis St, Suite 309 Portland, OR 97209 [email protected] Oregon League of Conservation Voters 321 SW 4th Ave, Suite 600 Portland, OR 97204 [email protected] Oregon Physicians for Social Responsibility 1020 SW Taylor St, Suite 275 Portland, OR 97206 [email protected] [email protected] Portland Audubon Society 5151 NW Cornell Rd. Portland, OR 97210 [email protected] Tualatin Riverkeepers 11675 SW Hazelbrook Rd. Tualatin, OR 97062 [email protected] Verde 7001 NE Columbia Blvd. Portland, OR 97218 [email protected]


Item M 000011

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I. Proposed Rule Language

As required by OAR 137-001-0070(1)(a), petitioners request that the Environmental Quality

Commission adopt the proposed rule language below:

Section 1. Policy and Purpose

The Commission finds and declares indirect sources to be air contamination sources as defined in

ORS 468A.005. The Commission further finds and declares that the regulation of indirect

sources is necessary to control the concentration of air contaminants which result from aggregate

mobile source emissions associated with the construction and/or operation of indirect sources.

Section 2. Jurisdiction

Nothing in this rule shall preclude or restrict any city, county, or other political subdivision of

this state from imposing local indirect source controls or requirements that are equivalent to or at

least as stringent as the requirements established in this rule. Any city, municipality, or

metropolitan service district with a population of less than 50,000 may by ordinance voluntarily

select to be included within the geographic scope of this rule as specified in Section 4, subsection

(1).

Section 3. Definitions

The definitions in OAR 340-200-0020, 340-204-0010 and this rule apply to this division. If the

same term is defined in this rule and in 340-200-0020 or 340-204-0010, the definition in this rule

applies to this division.

1) “Accredited Emissions Verification Body” means any independent entity or individual

approved by the Department to verify emissions data, calculations, estimates, and

projections produced by or for an Indirect Source Construction Permit applicant. If the

Department determines that any or all verification bodies accredited by the California Air

Resources Board (CARB) are capable of providing the verification services necessary

under this rule, the Department may authorize CARB-accredited verification bodies to

provide the verification services required under section 5(7) of this rule.

2) “Aggregate emissions” or “aggregate mobile source emissions” means the total quantity

of emissions of any regulated air pollutant from all mobile source activity associated with

a development project, a Regulated Indirect Source, or other indirect source, within a

sixty-minute, twenty-four-hour, or 365-day period.

3) “Air contaminant” or “air pollutant” means any dust, fume, gas, mist, odor, smoke, vapor,

soot, carbon, acid, particulate matter, compound, regulated pollutant, or any combination

thereof, which is emitted into or otherwise enters the ambient air.

4) “Air Impact Assessment” (AIA) means the calculation of emissions generated by the

project and the emission reductions required by the provisions set forth in this rule. The

AIA must be based solely on the information provided to the Department or Regional

Authority having jurisdiction in the permit application, and must include all information

listed in section 5(3) of this rule.


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5) “Applicant” means an applicant for an Indirect Source Permit.

6) “Associated parking” means a parking facility or facilities owned, operated, and/or used

in conjunction with an Indirect Source.

7) “Associated with” means any mobile source activity occurring within the physical or

legal boundary of an indirect source, any mobile source activity originating or

terminating at an indirect source, and any mobile source activity that passes through or

operates within the boundaries of an indirect source for a limited period of time.

8) “Average daily traffic” or “ADT” means the total traffic volume during a twenty-four-

hour period, as averaged over a one week, one month, or one year period.

9) “Baseline emissions” means the unmitigated aggregate emissions of any regulated air

pollutant, as calculated by the Department-approved model, produced by or projected to

be produced by mobile source activity within the boundary of or associated with an

indirect source.

10) “Baseline construction emissions” means the sum of projected baseline emissions of any

regulated pollutant from all mobile sources operating at the project site or associated with

the project for the duration of construction activities, or any phase thereof, in total tons.

11) “Baseline operating emissions” means the sum of projected baseline emissions of any

regulated pollutant from all mobile sources operating at the indirect source or associated

with the indirect source, as calculated by the Department-approved model, for the first

year of operations for that source, or any phase thereof, in tons per year.

12) “Best management practice” or “BMP” means a method, practice, activity, technology, or

any combination thereof that is determined by the Department to be an effective means of

preventing or reducing emissions of any regulated air pollutant.

13) “California Air Resources Board” or “CARB” means the state regulatory agency charged

with regulating air quality in California.

14) “Carbon dioxide equivalent” or “CO2e” means an amount of a greenhouse gas or gases

expressed as the equivalent amount of carbon dioxide, and is to be computed by

multiplying the mass of each of the greenhouse gases by the global warming potential

published for each gas at 40 C.F.R. part 98, subpart A, Table A–1-Global Warming

Potentials, and adding the resulting value for each greenhouse gas to compute the total

equivalent amount of carbon dioxide.

15) “Commence construction” means to begin to engage in a process or program of on-site

construction or on-site modifications, including site clearance, grading, dredging, or

landfilling in preparation for the construction, installation, or modification of a structure

or facility. Interruptions and delays resulting from natural disasters, strikes, litigation, or

other matters beyond the control of the owner or operator shall be disregarded in

determining whether a construction or modification program is continuous.

16) “Commission” or “EQC” means the Environmental Quality Commission.

17) “Construction” means any physical change including, but not limited to, fabrication,

erection, installation, demolition, or modification of a physical structure.

18) “Construction activity” means any process, operation, action, or reaction (e.g., chemical)

of a mobile source or combination of mobile sources that emits a regulated pollutant and

is associated with the construction of a development project.

19) “Construction emissions” means any exhaust emissions resulting from the use of internal

combustion engines related to construction activity, which is under the control of the

applicant or permittee through ownership, rental, lease agreements, or contract.


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20) “Continuous monitoring systems” means sampling and analysis, in a timed sequence,

using techniques that will adequately reflect actual emissions or concentrations on a

continuing basis as specified in the DEQ Continuous Monitoring Manual, found in OAR

340-200-0035, and includes continuous emission monitoring systems, continuous opacity

monitoring systems (COMS), and continuous parameter monitoring systems.

21) “Criteria pollutant" means any of the following regulated pollutants: nitrogen oxides,

volatile organic compounds, particulate matter, PM10, PM2.5, sulfur dioxide, carbon

monoxide, and lead.

22) “Department” means the Department of Environmental Quality.

23) “Department-approved model” means any computer model that estimates construction

and/or operating emissions of any regulated air pollutant resulting from mobile source

activity associated with an indirect source, using the most recent DEQ- or EPA-approved

version of relevant emissions models and emission factors. Each such model should

perform the following functions, as demonstrated by the California Emissions Estimator

Model (CalEEMod):

(a) Quantify potential direct emissions of regulated pollutants from construction and

operation activities, including emissions from on-road and nonroad vehicles and

engines; and

(b) Identify mitigation measures to reduce emissions of regulated pollutants and

quantify potential emissions reductions resulting from the application of available

measures.

24) “Development project” or “project” means any activity, or portion thereof, that is subject

to an approval by a public agency, and will ultimately result in:

(a) The construction of a new building, facility, or structure;

(b) The reconstruction of a building, facility, or structure; or

(c) The demolition of a building, facility, or structure.

25) “Director” means the Director of the Department or Regional Authority and authorized

deputies or officers.

26) “Emissions” means a release into the atmosphere of any regulated pollutant or any air

contaminant.

27) “Emissions control technology” or “emissions control device” means technology added

to a mobile source to reduce emissions of an air contaminant, including but not limited to

catalytic converters and particulate filters. For the purpose of this rule, all emissions

control technology must be verified by the EPA or CARB.

28) “Emissions mitigation measure” means any feature, activity, device, design, condition, or

control technology, which is incorporated into the design, equipment, practices, or

activities of a development project, or through other means, which will avoid, minimize,

reduce or eliminate the emissions of any regulated air pollutant. All on-site emission

reductions achieved beyond Department or state requirements shall count towards the

project’s emissions mitigation requirements. City, County, and other public agency

requirements that result in emissions reductions that are additional to those required by

the Department may also be credited towards a project’s emission mitigation

requirements.

29) “Emissions verification statement form” means a paper or electronic form developed by

DEQ that must be completed by the permittee and verified by an Accredited Emissions

Verification Body to report projected, actual, mitigated, or permitted emissions from all


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mobile source activity associated with a development project or the operations of an

indirect source.

30) “Greenhouse gas” or “GHG” means any gas that contributes to anthropogenic global

warming including, but not limited to, carbon dioxide, methane, nitrous oxide,

hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

31) “Heavy duty motor vehicle” means any vehicle defined under OAR 340-256-0010(25).

32) “Indirect source” means a facility, building, structure, installation, or any portion or

combination thereof, that attracts or may attract mobile sources of air pollution, or that

directly or indirectly causes or may cause mobile source activity that results in emissions

of any regulated pollutant. Such indirect sources shall include, but not be limited to:

(a) Parking Facilities;

(b) Retail, Commercial, and Industrial Facilities;

(c) Recreation, Amusement, Sports, and Entertainment Facilities;

(d) Office and Government Buildings;

(e) Educational Facilities;

(f) Hospital Facilities;

(g) Warehouses and freight distribution facilities;

(h) Rail terminals;

(i) Ports and marine terminals; and

(j) Development projects.

33) “Indirect Source Permit” means an Indirect Source Construction Permit or an Indirect

Source Operating Permit.

34) “Indirect Source Construction Permit” means a written permit in letter form issued by the

Department or Regional Authority having jurisdiction, bearing the signature of the

Director, which authorizes the permittee to commence construction of a development

project, including a development project that is or will be a Regulated Indirect Source,

under construction and operating conditions and schedules as specified in the permit. An

Indirect Source Construction Permit includes requirements for the construction of a

development project and does not by itself provide authorization to operate the facility

once construction is complete.

35) “Indirect Source Emission Control Program” or “ISECP” means a program which

reduces mobile source emissions resulting from the use or operations of an Indirect

Source. An ISECP may include, but is not limited to:

(a) Posting transit route and scheduling information;

(b) Construction and maintenance of bus shelters and turnout lanes;

(c) Maintaining mass transit fare reimbursement programs;

(d) Making a carpool matching system available to employees, shoppers, students,

residents, etc.;

(e) Reserving parking spaces for carpools;

(f) Making parking spaces available for park-and-ride stations;

(g) Minimizing vehicle running time within parking lots through the use of sound

parking lot design;

(h) Ensuring adequate gate capacity by providing for the proper number and location

of entrances and exits and optimum signalization for such;

(i) Limiting traffic volume so as not to exceed the carrying capacity of roadways;

(j) Altering the level of service at controlled intersections;


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(k) Obtaining a written statement of intent from the appropriate public agency(s) on

the disposition of roadway improvements, modifications, and/or additional transit

facilities to serve the individual source;

(l) Construction and maintenance of exclusive transit ways;

(m) Providing for the collection of air quality monitoring data at reasonable receptor

and exposure sites;

(n) Limiting facility modifications which can take place without resubmission of

permit application.

36) “Indirect Source Operating Permit” means a written permit in letter form issued by the

Department or Regional Authority having jurisdiction, bearing the signature of the

Director, which authorizes the permittee to commence or continue operations of a

Regulated Indirect Source under operating conditions and schedules as specified in the

permit.

37) “Indirect Source Permit Application” means an application for an Indirect Source

Construction Permit or an Indirect Source Operating Permit.

38) “Metropolitan service district” means a metropolitan service district established under

ORS Chapter 268.

39) “Mitigated construction emissions” means the projected or actual aggregate emissions

generated by mobile source activity within or associated with a development project after

on-site emission mitigation measures have been applied.

40) “Mitigated operating emissions” means the projected or actual aggregate emissions

generated by mobile source activity within or associated with an indirect source after on-

site emission mitigation measures have been applied.

41) “Mobile source” means a self-propelled vehicle powered by an internal combustion

engine or an internal combustion engine installed inside a piece of equipment designed

for off-road use, including an engine installed in equipment that is not self-propelled and

is not permanently installed at a stationary facility or location. Mobile sources include

both on-road and nonroad vehicles and engines, including but not limited to automobiles,

trucks, motorcycles, engines used in nonroad construction equipment, locomotives,

marine vessels, and aircraft.

42) “Mobile source activity” means any process, operation, action, or reaction (e.g., chemical) of a mobile source or combination of mobile sources that emits a regulated

pollutant.

43) “Monitoring” means any form of collecting data on a routine basis to determine or

otherwise assess compliance with emission limitations or standards. Monitoring may

include record keeping if the records are used to determine or assess compliance with an

emission limitation or standard such as records of raw material content and usage, or

records documenting compliance with work practice requirements. Monitoring may also

include one or more of the data collection techniques listed under OAR 340-200-

0020(94).

44) “Monitoring and Reporting Schedule” or “MRS” means a form or document listing an

applicant’s selected emissions mitigation measures and describing how and when the

applicant will implement, monitor, and enforce such mitigation measures and

demonstrate compliance with applicable standards and permit requirements.

45) “Nitrogen oxides” or “NOx” means all oxides of nitrogen.


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46) “Nonroad vehicle” or “nonroad engine” means any mobile source designed or intended

exclusively for off-road or non-highway use.

47) “Off-street area or space” means any area or space not located on a public road dedicated

for public use.

48) “Operating emissions” means the aggregate mobile source emissions associated with the

operations of a Regulated Indirect Source.

49) “Owner or operator” means a person or entity that owns or operates an indirect source.

50) “Parking facility” means any building, structure, lot, or portion thereof, designed and

used primarily for the temporary storage of motor vehicles in designated parking spaces.

51) “Parking space” means any off-street area or space below, above, or at ground level, open

or enclosed, that is used for parking one motor vehicle at a time.

52) “Person” means individuals, corporations, associations, firms, partnerships, joint stock

companies, public and municipal corporations, political subdivisions, the State and any

agencies thereof, and the federal government and any agencies thereof.

53) “Particulate matter” or “PM,” in the context of this rule, means all finely divided solid or

liquid material, other than uncombined water, and including black carbon, emitted to the

ambient air through the combustion of any fossil fuel in an internal combustion engine.

54) “PM2.5” or “PM-2.5” means:

(a) When used in the context of emissions, means finely divided solid or liquid

material, including condensable particulate, other than uncombined water, with an

aerodynamic diameter less than or equal to a nominal 2.5 micrometers, emitted to

the ambient air as measured by the test method specified in each applicable rule

or, where not specified by rule, in each individual permit;

(b) When used in the context of ambient concentration, means airborne finely divided

solid or liquid material with an aerodynamic diameter less than or equal to a

nominal 2.5 micrometers as measured under 40 CFR part 50, Appendix L or an

equivalent method designated under 40 CFR part 53.

55) “Permit,” when used in this rule, means an Indirect Source Construction Permit, an

Indirect Source Operating Permit, any permit attachments, and/or any amendments or

modifications thereof.

56) “Permittee” means the owner or operator of an indirect source that is authorized to emit

regulated pollutants under an Indirect Source Construction Permit or an Indirect Source

Operating Permit.

57) “Population” means that population estimate most recently published by the Center for

Population Research and Census, Portland State University, or any other population

estimate approved by the Department.

58) “Project site” means the spatial, physical, or legal boundaries of a development project.

59) “Reasonable receptor and exposure sites” means locations where people might

reasonably be expected to be exposed to air contaminants generated in whole or in part

by the Indirect Source in question.

60) “Regional Authority” means a regional air quality control authority established under the

provisions of ORS 468A.105.

61) “Regulated air pollutant” or “regulated pollutant” means:

(a) Any criteria pollutant for which there is a National Ambient Air Quality Standard

or any air contaminant for which an ambient air quality standard has been

promulgated, including any precursors to such pollutants; and


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(b) Any air contaminant for which the Department or the United States

Environmental Protection Agency determined may reasonably be anticipated to

endanger the public health or welfare of current or future generations, including

greenhouse gases.

(c) Air contaminants subject to regulation under this rule include but are not limited

to carbon dioxide, carbon monoxide, particulate matter (including PM2.5 and

PM10), nitrogen oxides, nitrous oxide, sulfur dioxide, and methane.

62) “Regulated Indirect Source” means any indirect source that must obtain an Indirect

Source Operating Permit under section 4(3)(a) prior to commencing or continuing

operations.

63) “Total contract value” means the full dollar value of a fully executed contract.

64) “Transit development project” means any project solely intended to create a passenger

transportation service that is local, metropolitan, or regional in scope and that is available

to any person. Examples of transit development projects include transportation by bus,

rail, or other conveyance, either publicly or privately owned, which is provided to the

public or specialty service on a regular or continuing basis. Also known as “mass transit,”

“mass transportation,” or “public transportation.”

65) “Transportation development project” means any project solely intended to create a new

paved surface that is used for the transportation of motor vehicles, or any structural

support thereof. Examples of transportation development projects include streets,

highways and any related ramps, freeways and any related ramps, and bridges. This does

not include development projects where traffic surfaces are a portion of the project, but

not the main land-use.

66) “Vehicle trip” means a single movement by a motor vehicle which originates at,

terminates at, passes through, or otherwise uses an indirect source.

Section 4. Sources Required to Have Indirect Source Permits

(1) Geographic Scope. An indirect source identified in Section 4, subsection (2) or (3), and

located within a city, municipality, or metropolitan service district with a population of at

least 50,000 must obtain, prior to commencing construction or operation or continuing

operation beyond one year following the final promulgation of this rule, an Indirect

Source Permit from the Department or Regional Authority having jurisdiction.

(2) Sources required to have Indirect Source Construction Permits. Except as specified

in Section 4, subsection (2)(d), the owner, operator, or developer of a development

project identified in Section 4, subsection (2)(a), shall not commence construction of such

a project without an approved Indirect Source Construction Permit issued by the

Department or Regional Authority having jurisdiction. A development project is or will

be a Regulated Indirect Source listed under Section 4, subsection (3)(a) must also obtain

an Indirect Source Operating Permit before the Regulated Indirect Source may

commence operation.

(a) Applicability. Except as specified in Section 4, subsection (2)(d), this section

shall apply to any applicant that seeks to commence construction of a

development project, or any portion thereof, which upon full build-out and/or

project completion will include:

(A) Any permanent residential, commercial, or industrial structure with an

area of at least 10,000 square feet;


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(B) Any parking facility or other indirect source with associated parking being

constructed or modified to create new or additional parking or associated

parking capacity of 500 or more parking spaces;

(C) The demolition of any permanent residential, commercial, or industrial

structure with an area of at least 10,000 square feet, where such demolition

does not represent an incremental phase of construction as specified in

Section 4, subsection (b);

(D) The excavation of any lot or portion of any lot area where the total area of

disturbance will equal or exceed 8,000 square feet; or

(E) Any development project with a total contract value of $1,000,000 or

more, where:

(i) Baseline construction emissions are estimated to equal or exceed one

(1.0) ton per year of PM2.5, NOx, or any other criteria pollutant; or

2,500 metric tons CO2e per year of any other air pollutant subject to

this rule; or

(ii) Baseline construction emissions could reasonably be anticipated to

result in ambient concentrations of PM2.5 within the boundaries of the

facility exceeding one microgram per cubic meter (1 µg/m3) during

any sixty-minute period between the hours of 7:00 a.m. and 7:00 p.m.

PST, or exceeding 2 µg/m3 during any other sixty-minute period.

(b) Development projects with incremental phases of construction.

(A) Where an Indirect Source is constructed or modified in increments which

individually are not subject to review under this rule, and which are not

part of a program of construction or modification in planned incremental

phases approved by the Director, all such increments commenced after

January 1, 2020 shall be added together for determining the applicability

of this rule.

(B) An Indirect Source Construction Permit may authorize more than one

phase of construction where commencement of construction or

modification of successive phases will begin over acceptable periods of

time referred to in the permit; and thereafter construction or modification

of each phase may be begun without the necessity of obtaining another

permit.

(c) Projects on Contiguous or Adjacent Property.

(A) The owner, operator, or developer of any two or more development

projects on contiguous or adjacent property under common ownership of a

single entity in whole or in part that is designated and zoned for the same

development density and land use, regardless of the number of tract maps,

where the total combined build out and/or completion of all development

projects would trigger applicability of this rule under Section 4,

subsections (2)(a) or (2)(b), must apply for an Indirect Source

Construction Permit under this section.

(B) Single development projects where individual structures and/or associated

parking capacity are to be developed in phases must calculate the total

combined area and/or aggregate parking capacity based on the


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development project as a whole when determining the applicability of this

rule.

(d) Exemptions. The following projects shall be exempt from the requirements of

Section 4, subsection (2):

(A) A development project identified in Section 4, subsection (2)(a), that has

received final discretionary approval prior to January 1, 2020 and

commences construction within 18 months of receiving final discretionary

approval.

(B) A development project identified in Section 4, subsection (2)(a), that has

commenced construction prior to January 1, 2020.

(C) A development project that has mitigated construction emissions below

one (1.0) ton per year of PM2.5.

(3) Indirect Sources required to have Indirect Source Operating Permits. Except as

specified in Section 4, subsection (3)(b), the owner or operator of an indirect source

identified in Section 4, subsection (3)(a), shall not commence or continue operations

beyond one year following the final promulgation of this rule, without an approved

Indirect Source Operating Permit issued by the Department or Regional Authority having

jurisdiction.

(a) Applicability. Except as specified in Section 4, subsection (3)(b), Section 4,

subsection (3) shall apply to any applicant that seeks to commence or continue

operation of an indirect source, or any portion thereof, if any of the following

conditions are met:

(A) Total aggregate emissions from all mobile source activity associated with

the facility exceeds one (1.0) ton per year of PM2.5, NOx, or any other

criteria pollutant; or 2,500 metric tons per year CO2e of any greenhouse

gas that is a regulated air pollutant under this rule;

(B) Ambient concentrations of PM2.5 within the boundaries of the facility

exceed one microgram per cubic meter (1 µg/m3) during any sixty-minute

period between the hours of 7:00 a.m. and 7:00 p.m. PST, or exceed 2

µg/m3 during any other sixty-minute period;

(C) Vehicle trips by heavy duty diesel motor vehicles, as defined by OAR

340-256-0010, associated with the indirect source equal or exceed 50

within any 24-hour period;

(D) The aggregate engine power of all mobile sources operating within the

indirect source in any 24-hour period equals or exceeds 5,000 horsepower;

or

(E) Aggregate mobile source activity associated with the site consumes or is

reasonably expected to consume 750 or more gallons of diesel fuel and/or

gasoline in any 24-hour period.

(b) Exemptions. The following indirect sources shall be exempt from the

requirements of Section 4, subsection (3):

(A) An indirect source that has mitigated operating emissions below one (1.0)

ton per year of PM2.5.


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Section 5. Indirect Source Permit Application Process

(1) Fees. Persons applying for an Indirect Source Permit shall at the time of application pay a

permit fee established by the Commission.

(2) Indirect Source Permit Application requirements. An applicant for an Indirect Source

Construction Permit or an Indirect Source Operating Permit shall submit the following to

the Department:

(a) A completed Short Form Application;

(b) A map showing the location and size of the site;

(c) A description of the current, proposed, and/or prior use of the site;

(d) The location of current or expected mobile source activity at the site;

(e) An estimate of the annual average weekday vehicle trips generated by the

movement of mobile sources to and from the site. A development project shall

provide estimates for the first and fifth years after completion of each planned

incremental phase of the indirect source;

(f) A description of the availability and type of mass transit presently serving or

projected to serve the indirect source. This description shall include mass transit

operation within one-quarter mile of the boundary of the indirect source;

(g) A completed Air Impact Assessment, as specified in Section 5, subsection (3) of

this rule;

(h) A completed list of emissions mitigation measures, as specified in Section 5,

subsection (4) of this rule;

(i) A completed Monitoring and Reporting Schedule, as specified in Section 5,

subsection (5) of this rule;

(j) Applicants for an Indirect Source Construction Permit shall also provide a site

plan and detailed project description including, but not limited to:

(A) The location and size of all proposed earth-clearing activity at the site;

(B) A proposed project schedule;

(C) If residential, the number and type of dwelling units;

(D) If commercial or industrial, the facility type and interior square footage;

(E) The location and quantity of parking spaces at the indirect source and

associated parking area; and

(F) Points of motor vehicle ingress and egress to and from the site and

associated parking.

(k) Applicants for an Indirect Source Operating Permit shall also provide:

(A) A list of all mobile sources associated with or reasonably expected to be

associated with the facility on a daily, weekly, and monthly basis; and

(B) The make, model, and model year of any mobile sources associated with

the facility that are under the applicant’s ownership or control.

(l) Such additional information as may be required when there is reasonable basis for

concluding:

(A) The indirect source may cause or contribute to a violation of the Clean Air

Act Implementation Plan for Oregon;

(B) The indirect source may cause or contribute to a delay in the attainment of

or a violation of any applicable ambient air quality standard, or may cause

or contribute to the violation of any applicable increment; or


Item M 000021

11

(C) The information is necessary to determine whether the proposed indirect

source may cause or contribute to any such delay or violation. The

Department shall base such conclusion on any reliable information,

including but not limited to ambient air monitoring, traffic volume, traffic

speed, or air quality projections based thereon.

(3) Air Impact Assessment. An applicant for an Indirect Source Permit must submit an Air

Impact Assessment (AIA) with its Indirect Source Permit Application. The AIA shall

meet the following requirements:

(a) The applicant shall estimate and quantify construction and operational emissions

of any air pollutants subject to this rule that may reasonably be expected to be

produced by mobile source activity associated with the indirect source, including

but not limited to fine particulate matter (PM2.5), nitrogen oxides (NOx), carbon

dioxide, and methane. The applicant’s AIA shall include:

(A) If the applicant seeks an Indirect Source Construction Permit:

(i) The estimated baseline construction emissions of every regulated

pollutant that may reasonably be produced from mobile source activity

associated with the project, for each phase of the project; and

(ii) The mitigated construction emissions of every regulated pollutant that

may reasonably be produced from mobile source activity associated

with the project, for each phase of the project; and

(B) If the applicant seeks an Indirect Source Operating Permit:

(i) The estimated baseline operating emissions of every regulated

pollutant that is or may reasonably be produced from mobile source

activity associated with the project on an annual basis; and

(ii) The mitigated operating emissions of every regulated pollutant that is

or may reasonably be produced from mobile source activity associated

with the project on an annual basis.

(b) The AIA analysis shall use a Department-approved model to calculate the

estimated baseline emissions and mitigated emissions associated with the project.

The applicant shall submit to the Department copies of all model runs conducted

for the project.

(c) The AIA may be developed by the permit applicant or by a third-party.

(d) The applicant shall include in its application any other information and

documentation that supports the baseline and mitigated emissions calculations

specified in the AIA.

(4) Emissions Mitigation Measures. If the applicant’s Air Impact Assessment indicates that

the project’s baseline emissions will or may exceed the applicable emissions limits

specified in Section 6, subsection (2) of this rule or in Section 7, subsection (2) of this

rule, the applicant must submit a list of one or more emissions mitigation measures

capable of achieving required emissions reductions from the indirect source. Emissions

mitigation measures identified through a Department-approved model are presumed to be

capable of achieving quantifiable emissions reductions, as specified through the model.

The applicant’s selected emissions mitigation measures must comply with the following

requirements:

(a) Emissions mitigation measures must achieve quantifiable, verifiable, and

permanent reductions in emissions of any regulated pollutants.


Item M 000022

12

(b) Measures must be fully enforceable through permit conditions, development

agreements, or other legally binding instrument entered into by the applicant and

the Department.

(5) Monitoring and Reporting Schedule. An Indirect Source Permit Application shall

include a completed proposed Monitoring and Reporting Schedule (MRS) for the

applicant’s selected emissions mitigation measures. A proposed MRS shall outline how

the mitigation measures will be implemented and enforced, and must include the

following information:

(a) A list of emissions mitigation measures the applicant has selected to reduce

emissions of any regulated air pollutants subject to this rule;

(b) Standards for determining compliance with selected mitigation measures, such as

funding, record keeping, reporting, installation, and/or contracting requirements;

(c) A reporting schedule;

(d) A monitoring schedule;

(e) Identification of the responsible entity for implementation; and

(f) Provisions for failure to comply.

(g) Applicants proposing emissions mitigation measures that require ongoing funding

shall provide evidence in the proposed MRS of continued funding.

(6) Additional Requirements for Development Projects that are or will be Regulated

Indirect Sources. If the development project is or will be a Regulated Indirect Source

under Section 4, subsection (3)(a), the following Long Form Application information

shall be submitted to the Department:

(a) All information required under Section 5, subsection (2);

(b) An estimate of the average daily traffic, peak hour, and peak eight hour traffic

volumes for all roads, streets, and arterials within 1/4 mile of the Regulated

Indirect Source and for all freeways and expressways within 1/2 mile of the

nearest boundary of the Regulated Indirect Source for the time periods stated in

Section 5, subsection (2)(e) as they exist at the time of application;

(c) An estimate of the gross baseline emissions of any regulated pollutants covered

under this rule;

(d) Estimated air pollutant levels at reasonable receptor and exposure sites. Estimates

shall be made for the first, fifth, and tenth years after the Regulated Indirect

Source is completed or fully operational. Such estimates shall be made for the

average and, if applicable, peak operating conditions.

(e) Evidence of the compatibility of the Regulated Indirect Source with any adopted

transportation plan for the area;

(f) An estimate of the additional residential, commercial, and industrial

developments which may occur concurrent with or as the result of the

construction and use of the Regulated Indirect Source; and

(g) A description of the Indirect Source Emission Control Program the facility’s

owner or operator will implement to mitigate operational emissions from mobile

source activity associated with the facility’s operations.

(7) Independent Third-Party Verification. An applicant for an Indirect Source Permit shall

obtain independent verification of the indirect source’s baseline emissions and mitigated

emissions from an Accredited Emissions Verification Body. The applicant shall submit


Item M 000023

13

an Emissions Verification Statement Form signed by an Accredited Emissions

Verification Body with its Indirect Source Permit Application.

(8) Timing.

(a) An applicant shall apply for an Indirect Source Construction Permit at least 90

days in advance of the anticipated start of construction.

(b) An applicant shall apply for an Indirect Source Operating Permit at least 90 days

in advance of the anticipated start of operations at the source. The owner or

operator of a Regulated Indirect Source that was engaged in operations on or

before the date on which this rule went into effect shall apply for an Indirect

Source Operating Permit no later than 365 days following the final promulgation

of this rule.

(9) Completeness. An application shall not be considered complete until the required

information is received by the Department or Regional Authority having jurisdiction. If

no timely written request is made for additional information, the application shall be

considered complete.

Section 6. Indirect Source Construction Permit Requirements

(1) Permit content. An Indirect Source Construction Permit must include at least the

following:

(a) A requirement to construct according to approved plans;

(b) A requirement to comply with all applicable requirements;

(c) Emission limits for aggregated mobile source activity and operations associated

with the development project;

(d) Monitoring requirements;

(e) Any specialized monitoring equipment (e.g., continuous monitoring systems)

requirements, if applicable;

(f) Notification and reporting requirements;

(g) A permit expiration date of no more than five years; and

(h) If upon completion the development project will be a Regulated Indirect Source

as defined under Section 4, subsection (3)(a), a requirement to obtain an Indirect

Source Operating Permit before commencing operation of the facility.

(2) Indirect Source Construction Permit emissions requirements.

(a) Emissions standards. A holder of an Indirect Source Construction Permit (the

permittee) shall comply with the following requirements:

(A) The average exhaust emissions for all non-road construction vehicles,

engines, and equipment greater than twenty-five (25) horsepower used or

associated with the development project may not exceed 0.02 grams per

kilowatt-hour (g/kW-hr) PM2.5 or 0.4g/kW-hr NOx during any sixty-

minute period.

(B) The average exhaust emissions from all on-road diesel-fueled vehicles and

engines used or associated with the development project may not exceed

0.01 grams per brake-horsepower-hour (g/bhp-hr) PM2.5 or 0.2 g/bhp-hr

NOx during any sixty-minute period.

(C) The total aggregate emissions associated with all construction activities of

any air pollutants that are greenhouse gases subject to this rule shall not

exceed ten metric tons per day CO2e.


Item M 000024

14

(b) Required emissions reductions. If a permittee’s baseline construction emissions

are estimated to exceed the emissions standards identified in Section 6, subsection

(a), the permittee must achieve the following annual reductions in aggregate

emissions from all construction activities associated with the development project

until the emissions standards identified in Section 6, subsection (2)(a) are met:

(A) A 50 percent reduction in baseline construction emissions of PM2.5.

(B) A 50 percent reduction in baseline construction emissions of NOx.

(C) For development projects that commence construction between January 1,

2021 and December 31, 2029, a 25 percent reduction in baseline

construction emissions of any air pollutant that is a greenhouse gas that is

a regulated pollutant under this rule.

(D) For development projects that commence construction after January 1,

2030, a 50 percent reduction in baseline construction emissions of any air

pollutant that is a greenhouse gas that is a regulated pollutant under this

rule.

(c) Emissions mitigation measures. A permittee shall achieve any required

emissions reductions by implementing one or more emissions mitigation

measures appropriate for the site or facility. A permittee may reduce construction

emissions by using lower-emitting construction vehicles, engines, equipment, and

other technologies designed to reduce emissions of regulated pollutants. A

permittee may further reduce emissions of certain regulated pollutants by

implementing best management practices (BMPs) approved by the Department.

Emissions mitigation measures must comply with the requirements listed in

Section 5, subsection (4) of this rule. Available emissions mitigation measures

include but are not limited to:

(A) Using nonroad vehicles, engines, and equipment that meet tier 4 or above

emissions standards;

(B) Using on-road diesel vehicles and engines that meet the most current and

stringent emissions standards adopted by EPA or the State of California

for the applicable vehicle or engine class;

(C) Using electric or other zero-emissions vehicles, engines, and equipment;

(D) Installing add-on pollution control devices and/or equipment to reduce

emissions from non-compliant vehicles and engines;

(E) Reducing fuel consumption through use of fuel-efficient equipment and/or

fuel-conserving BMPs;

(F) Using alternative fuels, such as renewable diesel, renewable natural gas, or

biodiesel; and

(G) Implementing programs or practices to reduce vehicle trips to or from the

indirect source or mobile source activity associated with the indirect

source.

Section 7. Indirect Source Operating Permit Requirements

(1) Permit content. An Indirect Source Operating Permit must include at least the

following:

(a) A requirement to operate according to an approved permit;

(b) A requirement to comply with all applicable permit requirements;


Item M 000025

15

(c) Emission limits for aggregated mobile source activity and operations associated

with the indirect source;

(d) Monitoring requirements;

(e) Any specialized monitoring equipment (e.g., continuous monitoring systems)

requirements, if applicable;

(f) Notification and reporting requirements; and

(g) A permit expiration date of no more than five years.

(2) Indirect Source Operating Permit emissions requirements.

(a) Emissions standards. The holder of an Indirect Source Operating Permit (the

permittee) shall comply with the following requirements:

(A) The average exhaust emissions for all non-road vehicles, engines, and

equipment greater than twenty-five (25) horsepower associated with the

indirect source may not exceed 0.02 grams per kilowatt-hour (g/kW-hr)

PM2.5 or 0.4g/kW-hr NOx during any sixty-minute period.

(B) The average exhaust emissions from all on-road diesel-fueled vehicles and

engines associated with the indirect source may not exceed 0.01 grams per

brake-horsepower-hour (g/bhp-hr) PM2.5 or 0.2 g/bhp-hr NOx during any

sixty-minute period.

(C) The total aggregate greenhouse gas emissions associated with all mobile

source activities associated with the indirect shall not exceed ten metric

tons per day CO2e.

(b) Required emissions reductions. If a permittee’s baseline operating emissions

exceed or are estimated to exceed the emissions standards identified in Section 7,

subsection (a), the permittee must achieve the following reductions in aggregate

emissions from all mobile source activities associated with the indirect source

until the emissions standards identified in section 7, subsection (2)(a) are met:

(A) A 50 percent reduction in baseline operating emissions of PM2.5.

(B) A 50 percent reduction in baseline operating emissions of NOx.

(C) For indirect sources operating between January 1, 2021 and December 31,

2029, a 25 percent reduction in baseline operating emissions of any air

pollutant that is a greenhouse gas that is a regulated pollutant under this

rule.

(D) For indirect sources operating after January 1, 2030, a 50 percent

reduction in baseline operating emissions of any greenhouse gas regulated

under this rule.

(c) Emissions mitigation measures. A permittee shall achieve any required

emissions reductions by implementing one or more emissions mitigation

measures appropriate for the site or facility. A permittee may reduce operating

emissions by using lower-emitting vehicles, equipment, or technologies. A

permittee may further reduce emissions of certain regulated pollutants by

implementing best management practices (BMPs) approved by the Department.

Emissions mitigation measures must comply with the requirements listed in

Section 5, subsection (4) of this rule. Available emissions mitigation measures

include but are not limited to:

(A) Using nonroad vehicles, engines, and equipment that meet tier 4 or above

emissions standards;


Item M 000026

16

(B) Using on-road diesel vehicles and engines that meet the most current and

stringent emissions standards adopted by EPA or the State of California

for the applicable vehicle or engine class;

(C) Using electric or other zero-emissions vehicles, engines, and equipment;

(D) Installing emissions control technology, add-on emissions control devices

and/or equipment to reduce emissions from non-compliant vehicles and

engines;

(E) Reducing fuel consumption through use of fuel-efficient equipment and/or

fuel-conserving BMPs; and

(F) Implementing programs or practices to reduce vehicle trips to or from the

indirect source or to reduce mobile source activity associated with the

indirect source, including but not limited to an Indirect Source Emission

Control Program.

Section 8. Issuance or Denial of Indirect Source Permits

(1) Issuance of an Indirect Source Permit shall not relieve the permittee from compliance

with other applicable provisions of the Clean Air Act Implementation Plan for Oregon.

(2) After reviewing a complete Indirect Source Permit Application, the Department or

Regional Authority having jurisdiction shall act to either disapprove a permit application

or approve it with possible conditions.

(3) An Indirect Source Permit may be denied if:

(a) The Indirect Source will cause or contribute to a violation of the Clean Air Act

Implementation Plan for Oregon;

(b) The Indirect Source will cause or contribute to a delay in the attainment of or

cause or contribute to a violation of any National Ambient Air Quality Standard;

(c) The indirect source causes or contributes to any violation of any National

Ambient Air Quality Standard by another indirect source or system of indirect

sources;

(d) The indirect source will cause or contribute to air pollution in excess of any

maximum allowable increase or maximum allowable concentration more than one

time per year for any pollutant in any area to which such increments apply, or the

indirect source will cause or contribute to air pollution in excess of any annual

increment; or

(e) The applicable requirements for an Indirect Source Construction Permit or an

Indirect Source Operating Permit application are not met.

(4) Notice. The issuance or denial of an Indirect Source Permit is subject to the public

participation requirements established under OAR 340-209-0030. The Department shall

notify the applicant in writing of its decision regarding the application and provide the

following in writing to the applicant, all interested parties as identified by the applicant,

and make available to the public:

(a) The Department’s approval or disapproval determination of the permit

application;

(b) The required emission reductions; and

(c) The amount of emissions reductions achieved through application of emissions

mitigation measures.


Item M 000027

17

(5) Any owner or operator of an indirect source operating without a permit required by this

rule, or operating in violation of any of the conditions of an issued permit shall be subject

to civil penalties and injunctions.

(6) Nothing in this rule shall preclude a city, county, Regional Authority, or other political

subdivision of this state from establishing additional permit conditions or requirements

for Indirect Source Permit applicants or permittees within its jurisdiction, so long as such

permit conditions or requirements are no less stringent than those established in this rule.

(7) If the Department shall deny, revoke, or modify an Indirect Source Permit, it shall issue

an order setting forth its reasons in essential detail.

Section 9. Permit Duration

(1) An Indirect Source Permit issued by the Department or a Regional Authority having

jurisdiction shall remain in effect until modified or revoked by the Department or such

Regional Authority.

(2) The Department or Regional Authority having jurisdiction may revoke the permit of any

indirect source acting in violation of the construction, modification, or operating

conditions set forth in this permit.

(3) An approved Indirect Source Construction Permit may be conditioned to expire if

construction or modification is not commenced within 18 months after receipt of the

approved permit; and, in the case of a permit granted covering construction or

modification in approved, planned incremental phases, a permit may be conditioned to

expire as to any such phase as to which construction or modification is not commenced

within 18 months of the time period stated in the initial permit for the commencing of

construction of that phase. The Director may extend such time period upon a satisfactory

showing by the permittee that an extension is justified.


Item M 000028

18

II. Facts and Arguments

As required per OAR 137-001-0070(1)(b), petitioners submit the following facts and arguments:

Emissions from mobile sources, including both on-road and nonroad vehicles and engines,

present a substantial threat to human health and the environment. Diesel pollution is a

particularly serious problem in Oregon’s urban areas. Diesel exhaust contains toxic air pollutants

that negatively impact human health and the environment. These pollutants, which include fine

particulate matter, nitrogen oxides, and black carbon, have been linked to cancer, cardiovascular

disease, and respiratory disorders. Black carbon is also a potent climate forcer that contributes to

both local and global temperature increases. To reduce the significant health and environmental

risks associated with diesel exhaust, the State of Oregon must implement effective strategies to

reduce the levels of pollution emitted by diesel vehicles and engines.1

In addition to the significant health and climate impacts associated with emissions from diesel-

fueled vehicles, Oregon is also negatively impacted by the emissions from gasoline-fueled

mobile sources. Gas-fired vehicles emit carbon monoxide, nitrogen oxides, and perhaps most

significantly, carbon dioxide. The transportation sector is the largest source of carbon emissions

in Oregon, and despite the state’s greenhouse gas reduction goals, transportation sector emissions

are rising rather than falling.2 Under the state’s current policy framework, Oregon’s

transportation emissions are expected to drop to 15–20% below 1990 levels by 2050—falling far

short of the state’s 75% greenhouse gas reduction goal.3 To achieve Oregon’s climate goals, the

state must adopt additional regulatory mechanisms to reduce transportation-sector carbon

emissions.

Indirect source rules, such as the rule for which petitioners hereby request promulgation, provide

a legal avenue for state and local governments to reduce air pollution and carbon emissions from

mobile sources, including both on-road and nonroad vehicles and engines operating within or

associated with a distinct site or facility. The Clean Air Act (CAA) gives states broad discretion

to adopt indirect source programs to control emissions from mobile sources. Indirect source rules

would complement current and future state programs to improve air quality and reduce carbon

emissions, because compliance with such other regulatory requirements would count towards a

source’s compliance obligations under indirect source rules as well. Indirect source rules would

also enable the state to control harmful emissions that are not currently subject to regulation.

1 For an overview of Oregon’s diesel pollution problems and a discussion of available strategies to mitigate the

issue, see AMELIA SCHLUSSER, ET AL., DECONSTRUCTING DIESEL: A LAW & POLICY ROADMAP FOR REDUCING

DIESEL EMISSIONS IN THE PORTLAND METROPOLITAN AREA (2019), https://law.lclark.edu/live/files/28596-

deconstructing-diesel-roadmap [hereinafter DECONSTRUCTING DIESEL LAW & POLICY ROADMAP]. 2 OREGON GLOBAL WARMING COMM’N, 2018 BIENNIAL REPORT TO THE LEGISLATURE at 6 (2018),

https://static1.squarespace.com/static/59c554e0f09ca40655ea6eb0/t/5c2e415d0ebbe8aa6284fdef/1546535266189/20

18-OGWC-Biennial-Report.pdf. 3 Id. at 58.


Item M 000029

19

We strongly urge the Environmental Quality Commission (EQC) to initiate rulemaking

proceedings to establish new regulations to address emissions from indirect sources. The EQC

and the Department of Environmental Quality (DEQ) have legal and regulatory authority to

adopt and implement the rule proposed by this petition, which would significantly reduce harm

to public health, the environment, and the state’s economy resulting from mobile source

emissions.

A. Reducing diesel emissions in Oregon is necessary to protect public health.

Diesel exhaust contains a variety of toxic air pollutants. The primary pollutants contained in

diesel exhaust are particulate matter, black carbon (a type of fine particulate matter), nitrogen

oxides, carbon monoxide and carbon dioxide.4 Diesel exhaust also contains more than 40

additional toxic pollutants, such as benzene, arsenic, and formaldehyde.5 These pollutants all

have negative impacts on the health of Oregon residents.

The toxic compounds in diesel pollution have been linked with increased rates of cancer, heart

disease, and respiratory illnesses.6 The World Health Organization classifies diesel exhaust as a

known human carcinogen.7 Exposure to diesel exhaust increases lung and bladder cancer risks.

8

The cancer risk associated with exposure to diesel pollution is significant; for example, the

California Air Resources Board estimates that approximately 70% of the air toxics-related cancer

risk in California is attributable to diesel particulate matter.9 Diesel pollution has also been tied

to cardiovascular disease and respiratory disorders and increases the risk of heart attacks and

asthma attacks.10

A 2005 analysis by the Clean Air Task Force estimated that Oregon’s diesel pollution is

responsible for 176 premature deaths and 145 non-fatal heart attacks each year.11

The EQC

recognizes diesel pollution as a human carcinogen and adopted a health-based ambient

benchmark concentration for diesel particulate matter of 0.1 micrograms per cubic meter

(µg/m3).

12 Areas of Multnomah County with the highest concentrations of diesel exhaust have

4 OR. DEPT. OF ENVT’L QUALITY, THE CONCERNS ABOUT DIESEL ENGINE EXHAUST 1 (2015),

http://www.oregon.gov/deq/FilterDocs/DieselEffectsReport.pdf [hereinafter DEQ 2015 DIESEL REPORT]. 5 Cal. Office of Envt’l Health Hazard Assessment, Health Effects of Diesel Exhaust (2001),

https://oehha.ca.gov/air/health-effects-diesel-exhaust. 6 DEQ 2015 DIESEL REPORT, supra note 4, at 2.

7 Int’l Agency for Research on Cancer, Diesel Engine Exhaust Carcinogenic at 1 (June 12, 2012),

https://www.iarc.fr/en/media-centre/pr/2012/pdfs/pr213_E.pdf. 8 DEQ 2015 DIESEL REPORT, supra note 4, at 2.

9 CAL. ENVIRONMENTAL PROTECTION AGENCY AIR RESOURCES BD., REVISED PROPOSED 2016 STATE STRATEGY FOR

THE STATE IMPLEMENTATION PLAN 15 (Mar. 7, 2017),

https://ww3.arb.ca.gov/planning/sip/2016sip/rev2016statesip.pdf. 10

DEQ 2015 DIESEL REPORT, supra note 4, at 2, 4. 11

Id. at 3–4; Clean Air Task Force, Diesel Soot Health Impacts: Oregon, http://www.catf.us/diesel/dieselhealth/state.php?site=0&s=41. 12

DEQ 2015 DIESEL REPORT, supra note 4, at 2; OR. DEPARTMENT OF ENVT’L QUALITY, AIR TOXICS PROGRAM,

AMBIENT BENCHMARK CONCENTRATIONS (ABC) 4 (Oct. 2010), https://www.oregon.gov/deq/FilterDocs/airtox-

abc.pdf.


Item M 000030

20

estimated cancer risks of 542-in-1,000,000,13

which is more than 500 times higher than the

additional cancer risk associated with the EQC’s benchmarks.14

Children and the elderly are

particularly vulnerable to diesel pollution exposure, and the Clean Air Task Force estimated that

diesel exhaust causes respiratory problems for thousands of Oregon children each year.15

Oregon’s diesel emissions also inflict substantial societal and economic costs on the state. In

total, the health and environmental impacts associated with Oregon’s diesel pollution are

estimated to cost the state’s economy more than $1.6 billion per year.16

By 2030, reductions in

diesel pollution could prevent an estimated 460 premature deaths per year in Oregon and save

the state’s economy $3.5 billion on an annual basis.17

B. Reducing mobile source emissions is necessary to meet Oregon’s greenhouse gas

reduction goals.

Mobile sources powered by gasoline and diesel fuel are collectively the largest source of carbon

emissions in Oregon. The state legislature adopted goals to reduce greenhouse gas emissions to

levels 10% below 1990 levels by 2020 and at least 75% below 1990 levels by 2050.18

However,

instead of dropping, carbon emissions from mobile sources operating in the state have increased

by more than 20% since 1990.19

Unless Oregon takes swift action to reduce emissions from on-

road and nonroad engines, mobile source emissions will prevent the state from achieving its

climate goals.

Gasoline and diesel fuel consumption is a major contributor to the human-caused climate crisis.

In 2017, Oregon’s transportation sector consumed more than half a billion barrels of petroleum

and emitted nearly 26 million metric tons of CO2.20

These emissions represented nearly 40% of

Oregon’s total greenhouse gases for the year.21

Because carbon emissions directly correlate with

fuel consumption, these emissions will decrease when fuel efficiency increases. However, the

Clean Air Act limits state authority to directly regulate fuel efficiency or carbon emissions from

mobile sources. Indirect source rules provide an opportunity for regulating carbon emissions at

the state and local level without conflicting with federal law. Indirect source rules would also 13

MULTNOMAH COUNTY, ENSURING HEALTHY AIR 23 (June 2018),

http://multnomah.granicus.com/MetaViewer.php?view_id=3&event_id=1198&meta_id=125609. 14

Oregon’s air toxics ambient concentration benchmarks are based on pollutant concentrations that would result in a

risk of 1-in-1,000,000 additional cancer diagnoses over a lifetime of exposure. Or. Dept. of Envt’l Quality, Oregon Air Toxics Benchmarks, https://www.oregon.gov/deq/aq/air-toxics/Pages/Benchmarks.aspx (last viewed Oct. 19,

2019). 15

DEQ 2015 DIESEL REPORT, supra note 4, at 3–4. 16

Id. at 6. 17

Id. 18

OR. REV. STAT. § 468A.205. 19

OREGON GLOBAL WARMING COMM’N, 2018 BIENNIAL REPORT TO THE LEGISLATURE at 76 (2018),

https://static1.squarespace.com/static/59c554e0f09ca40655ea6eb0/t/5c2e415d0ebbe8aa6284fdef/1546535266189/20

18-OGWC-Biennial-Report.pdf; Ted Sickinger, With Emissions on the Rise, Oregon Falls Well Short of Greenhouse Gas Reduction Goals, OREGONLIVE.COM,

https://www.oregonlive.com/politics/2018/12/with_emissions_on_the_rise_ore.html. 20

U.S. Energy Info. Admin, Oregon: Profile Data, Consumption and Expenditures, Table F16 (2019),

https://www.eia.gov/state/data.php?sid=OR#ConsumptionExpenditures; Sickinger, supra note 19. 21

Sickinger, supra note 19.


Item M 000031

21

complement other state efforts to reduce greenhouse gas emissions, such as a cap and trade

program, because emissions reductions could count towards a source’s compliance obligations

under both programs.

While all fossil fuel consumption contributes to climate change through carbon emissions, diesel

fuel consumption disproportionately contributes to climate change through black carbon

emissions. Approximately 70% of the fine particulate matter in diesel exhaust is emitted as black

carbon, which is an extremely potent short-lived climate forcer.22

Black carbon impacts global

temperatures in three ways.23

First, it absorbs solar radiation in the atmosphere and then re-emits

that radiation as heat. Second, when black carbon falls back to earth it darkens snow, ice, and

lighter-colored surfaces, reducing the amount of sunlight the Earth typically reflects back out to

space. And third, black carbon alters the reflectivity, stability, and precipitation from clouds.

An analysis by DEQ reported that black carbon emissions from diesel engines cause an estimated

$274 million in annual climate-related impacts in the state.24

These costs, however, could be

quickly avoided: because black carbon is very short-lived (it only remains in the atmosphere for

a period of days to weeks), reducing diesel emissions can create substantial near-term climate

benefits in Oregon.25

The impacts of climate change are already imposing costs and burdens on Oregon’s

communities. Indirect source rules would enable the state to reduce carbon emissions from the

transportation sector and help put Oregon on a trajectory to achieve its climate goals.

C. Diesel particulate emissions are of particular concern in Oregon’s urban centers

and environmental justice communities.

Any exposure to diesel particulate matter presents risks to human health. Residents of the state’s

urban centers, which experience higher levels of diesel exhaust and associated air pollution

concentrations, have a greater risk of suffering health impacts related to diesel exhaust exposure

than Oregonians living in less urban areas. Low-income and minority communities are

disproportionately impacted by diesel pollution. In Portland, for example, diesel pollution

concentrations in communities of color may be three times higher than average concentrations

within the city.26

Recent studies from Portland and Multnomah County illustrate these increased risks. This region

typically experiences the highest levels of diesel exhaust and associated air pollution

concentrations in Oregon, with many neighborhoods in the Portland metropolitan area exceeding

22

U.S. ENVT’L PROTECTION AGENCY, REPORT TO CONGRESS ON BLACK CARBON 5 (2010),

https://www3.epa.gov/airquality/blackcarbon/2012report/fullreport.pdf. 23

Id. at 3–4. 24

DEQ 2015 DIESEL REPORT, supra note 4, at 6. 25

DECONSTRUCTING DIESEL LAW & POLICY ROADMAP, supra note 1, at 10. 26

MULTNOMAH COUNTY HEALTH DEPT., 2014 REPORT CARD ON RACIAL AND ETHNIC DISPARITIES 31 (2014),

https://multco.us/file/37530/download.


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the state’s health benchmarks for diesel particulate pollution.27

Testing by Portland State

University detected localized diesel particulate concentrations that were 10 to 20 times higher

than the state’s safety benchmarks.28

Areas of Multnomah County with the highest

concentrations of diesel exhaust have estimated cancer risks of 542-in-1,000,000, which is much

higher than the 1-in-1,000,000 additional cancer risk associated with Oregon’s air toxics

benchmark standards.29

Low-income and minority populations living and working in neighborhoods with elevated diesel

pollution concentrations are at increased risk of health problems associated with diesel exhaust

exposure.30

Exposure to traffic pollution has also been shown to negatively affect near-term and

long-term academic performance, and many low-income and minority students in the Portland

area attend public schools where diesel pollution levels are higher than 80–90% of the United

States.31

Regular exposure to elevated diesel pollution concentrations may have a permanent

impact on these students’ health, income, and professional potential.

D. On-road and nonroad sources are major emitters of diesel particulate pollution.

Oregon’s diesel pollution is generated by a wide variety of mobile on-road and nonroad diesel

engines and vehicles. On-road diesel vehicles include, for example, heavy-duty trucks used to

transport freight, medium-duty trucks used for local deliveries, and waste collection vehicles.

Nonroad diesel vehicles and engines include most construction equipment, off-road vehicles,

agricultural vehicles, lawn and garden equipment, trains, and marine vessels. In Portland, on-

road and nonroad diesel engines are estimated to collectively emit more than 472 tons of

particulate pollution each year and produce approximately 90% of the diesel particulate matter in

the Portland metropolitan area.32

Similarly, recent emissions inventories in Lane and Marion

27

OR. DEPT. OF ENVT’L QUALITY, FACT SHEET: AIR QUALITY IN PORTLAND, PORTLAND AIR TOXICS SOLUTIONS

REPORT AND RECOMMENDATIONS 4 (2012), https://www.oregon.gov/deq/FilterDocs/12aq035patsReport.pdf

[hereinafter PATS FACT SHEET]. 28

Testing by Portland State University detected localized diesel particulate concentrations that were up to 20 times

higher than the state’s safety benchmarks. Keely Chalmers, Diesel Pollution Laws Could Tighten Under Proposed Oregon Bill, KGW.com (Apr. 3, 2017), http://www.kgw.com/news/local/diesel-pollution-laws-could-tighten-under-

proposed-oregon-bill/428262562. 29

ENSURING HEALTHY AIR: LOCAL COLLABORATIVE AND REGULATORY OPTIONS IN THE PORTLAND METRO AREA

16 (2018), http://multnomah.granicus.com/MetaViewer.php?view_id=3&event_id=1198&meta_id=125609; Or.

Dept. of Envt’l Quality, Oregon Air Toxics Benchmarks, https://www.oregon.gov/deq/aq/air-

toxics/Pages/Benchmarks.aspx. 30

PATS FACT SHEET, supra note 27, at 5. 31

See JACQUELINE S. ZWEIG, ET AL., AIR POLLUTION AND ACADEMIC PERFORMANCE: EVIDENCE FROM CALIFORNIA

SCHOOLS (Dec. 2009), http://econweb.umd.edu/~ham/test%20scores%20submit.pdf; Nicole Javorsky, Can Traffic Pollution Negatively Affect Student Performance?, PSMAG.COM (Feb. 5, 2019), https://psmag.com/education/can-

traffic-pollution-affect-student-performance. At three of Portland’s under-performing public high schools, David

Douglas, Roosevelt, and Jefferson High Schools, the student bodies are predominantly low-income and non-white,

and estimated diesel PM2.5 concentrations are higher than those in 80% to 90% of the United States. 32

PORTLAND AIR TOXICS SOLUTIONS ADVISORY COMMITTEE, PATS 2017 POLLUTANT MODELING SUMMARY 6

(2011), https://www.oregon.gov/deq/FilterDocs/15pollutantsAboveSummary.pdf [hereinafter PATS POLLUTANT

MODELING SUMMARY].


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counties indicate that on-road and nonroad diesel engines account for the vast majority of those

counties’ diesel particulate emissions.33

According to pollutant modeling by DEQ’s Portland Air Toxics Solutions (PATS) Advisory

Committee, on-road diesel vehicles in the Portland metropolitan area were projected to emit an

estimated 81.7 tons per year of toxic particulate pollution in 2017.34

In 2010, Portland’s average

concentrations of on-road diesel particulate pollution were more than 11 times higher than the

state’s health-based benchmark concentration.35

PATS estimated that on-road diesel emissions

would need to decline by 91% to achieve Oregon’s diesel particulate benchmark concentration.36

According to the PATS modeling, the majority of Portland’s diesel particulate pollution comes

from nonroad diesel engines, which were estimated to emit 344.8 tons per year of fine particulate

matter.37

Most of this pollution is emitted from off-road construction vehicles and engines,

though rail and marine engines also contribute to Portland’s nonroad diesel pollution. With

regard to the construction sector, Portland’s average concentration of diesel particulate pollution

from construction equipment was more than 12 times higher than the state’s health-based

benchmark.38

To achieve Oregon’s diesel particulate benchmark concentration, PATS estimated

that construction emissions would need to drop by 92.5%, or by 228.7 tons per year.39

PATS

measurements also showed average marine and railroad particulate pollution concentrations were

more than eight and nine times higher, respectively, than Oregon’s benchmark concentrations.40

To achieve Oregon’s benchmark concentrations, rail and marine particulate emissions would

need to be reduced by 42.8 tons per year.41

While the PATS projections clearly indicate that diesel particulate concentrations in the Portland

area present a threat to public health, ongoing research by Portland State University and Reed

College suggests that actual diesel emissions rates and pollution concentrations in the metro

region may be much higher than the PATS modeling projected, particularly in the vicinity of

active construction projects. In other words, diesel engines currently operating in the Portland

area may be emitting dramatically more particulate pollution than the PATS team projected.

33

U.S. Envt’l Protection Agency, Air Emissions Inventories: 2014 National Emissions Inventory (NEI) Data,

https://www.epa.gov/air-emissions-inventories/2014-national-emissions-inventory-nei-data. 34

PATS POLLUTANT MODELING SUMMARY, supra note 32, at 6. 35

PATS measured an average on-road diesel particulate matter concentration of 1.117 µg/m3, which was 11.17

times Oregon’s ambient benchmark concentration of 0.1 µg/m3. OR. DEPT. OF ENVT’L QUALITY, PORTLAND AIR

TOXICS SOLUTIONS COMMITTEE REPORT AND RECOMMENDATIONS ch. 6, tbl. 13, p. 4 (2012),

https://www.oregon.gov/deq/aq/air-toxics/Pages/PATS.aspx [hereinafter PATS REPORT]. 36

Id. 37

PATS POLLUTANT MODELING SUMMARY, supra note 32, at 6. 38

PATS measured an average construction diesel particulate matter concentration of 1.2209 µg/m3, which was 12.21

times Oregon’s ambient benchmark concentration of 0.1 µg/m3. PATS REPORT, supra note 35, ch. 6, tbl. 14, p. 5.

39 Id.

40 The PATS pollutant modeling measured an average marine diesel particulate matter concentration of 0.8191

µg/m3, which was 8.19 times Oregon’s ambient benchmark concentration of 0.1 µg/m

3. Id. at ch. 6, tbl. 16, p. 7. The

study measured an average railroad diesel particulate matter concentration of 0.9545 µg/m3, which was 9.54 times

Oregon’s ambient benchmark concentration of 0.1 µg/m3. Id. at ch. 6, tbl. 15, p. 6.

41 Id.


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E. Indirect source rules can control aggregate emissions from on-road and nonroad

vehicles and engines.

To mitigate the adverse health and environmental impacts from mobile source pollution, the

State of Oregon must work to reduce local emissions from vehicles and engines. Indirect source

rules provide a legal avenue for the state to control aggregate emissions from both on-road and

nonroad vehicles and engines within a single site or facility.

The Clean Air Act (CAA) gives states broad discretion to adopt indirect source programs to

control aggregate air pollution from mobile sources. CAA section 110 expressly authorizes states

to regulate emissions from “indirect sources” of air pollution.42

An indirect source is a physical

location that attracts or may attract mobile sources of air pollution. Buildings, parking lots,

construction sites, highways, ports, and rail yards are all examples of indirect sources.43

Under

the CAA, states may adopt indirect source programs that regulate the aggregate emissions

produced by mobile sources within the boundaries of, or attracted by, an indirect source. In other

words, indirect source rules are regulatory programs for controlling the total emissions produced

by mobile sources associated with an indirect source, without directly regulating the emissions

from individual vehicles and engines operating within the indirect source. Indirect source rules

therefore empower state and local governments to indirectly regulate emissions from both on-

road and nonroad vehicles and engines operating at or attracted to a single location.44

F. Current regulations in Oregon fail to adequately address pollution from indirect

sources.

The EQC previously adopted rules for indirect sources, but the program’s scope is very limited

and it has not had a meaningful impact on air quality in the state. Under existing EQC rules,

indirect sources that intend to construct 1,000 or more parking spaces within the city limits of

Portland, Salem, Eugene, or Medford, or 800 or more parking spaces in central Portland, must

first obtain an indirect source construction permit from DEQ.45

No other indirect sources in the

state are required to obtain permits under the existing rules. Because the regulations were

designed primarily to address carbon monoxide emissions resulting from passenger vehicle trips,

Oregon’s rules for indirect sources fail to reduce emissions from diesel construction equipment

and other nonroad vehicles and engines. Moreover, there is no available evidence to indicate that

the current rules have measurably reduced emissions from on-road vehicles operating in

Oregon’s urban communities.

Further, Oregon’s current indirect source construction permits generally do not impose any

additional substantive requirements on the sources they cover.46

Under limited circumstances,

42

42 U.S.C. § 7410(a)(5). 43

The CAA defines “indirect source” as “a facility, building, structure, installation, real property, road, or highway

which attracts, or may attract, mobile sources of pollution.” Id. § 7410(a)(5)(C). 44

The U.S. Court of Appeals for the Ninth Circuit held that indirect source rules are not preempted emissions

standards under the Clean Air Act because they target aggregate mobile source emissions associated with a facility,

rather than regulate direct emissions from individual mobile sources. Nat’l Ass’n of Homebuilders v. San Joaquin

Valley Unified Air Pollution Control Dist., 627 F.3d 730 (9th Cir. 2010). 45

OR. ADMIN. R. § 340-254-0040(1). 46

See OR. ADMIN. R. §§ 340-254-0060, 340-254-0070.


Item M 000035

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including if a source will cause or contribute to a violation of Oregon’s CAA state

implementation plan or a violation of any national ambient air quality standard (NAAQS), DEQ

may require the source to establish an Indirect Source Emission Control Program (ISECP)

containing selected measures to control emissions.47

The source may choose any single measure

or combination of measures to reduce emissions through its ISECP, such as reserving parking

spaces for carpools or reimbursing public transit fares. The source is not required, however, to

demonstrate that its chosen measures will result in better air quality or NAAQS attainment. The

source is also prohibited from including control measures that do not have “reasonably definable

costs.”48

Oregon’s existing rules for indirect sources are thus quite limited in scope and effect, and have

little measurable impact on mobile source pollution in the state. However, petitioners recognize

that the rules have the potential to provide limited benefits in certain circumstances, and we are

not requesting that the EQC repeal Oregon’s existing rules for indirect sources. Instead, we urge

the EQC to adopt the proposed indirect source rule to more effectively regulate toxic and

harmful emissions from a wider variety of sources than those covered under the existing rules.

G. Other jurisdictions have adopted effective indirect source rules.

Many state and local jurisdictions throughout the United States have adopted indirect source

rules. The most effective indirect source rules apply to multiple types and classes of indirect

sources, require specific reductions in air pollution emissions from construction and operating

activities, give sources flexibility to implement a variety of on-site and/or off-site emissions

reduction measures, and include monitoring requirements and legally binding enforcement

mechanisms to ensure compliance.

The San Joaquin Valley Air Pollution Control District (APCD) presents a notable example of

effective indirect source regulation. The APCD has adopted a fairly comprehensive indirect

source review program that applies to a variety of sources and requires measurable reductions in

emissions from new and modified indirect sources above certain size thresholds.49

Before

commencing construction, an indirect source must use computer models to project the source’s

baseline air pollution emissions, including emissions associated with the construction and daily

operation of the facility.50

The source must then identify and implement a combination of on-site

and/or off-site measures to reduce its baseline emissions by percentages specified in the rule.51

For example, an indirect source must reduce its construction-related PM10 emissions (i.e., the

emissions generated during the facility’s construction) by 45% and its operational PM10

emissions (i.e., the emissions generated during the completed facility’s day-to-day operations) by

50%.52

The indirect source may achieve these emissions reductions through on-site mitigation

measures, such as retrofitting construction equipment with pollution control devices, or by

47

OR. ADMIN. R. §§ 340-254-0060(2)(g), 340-254-0070(5). 48

OR. ADMIN. R. § 340-254-0070(4)(a). 49

San Joaquin Valley Air Pollution Control Bd., District Rule 9510 (Dec. 15, 2005) (amended Dec. 21, 2017;

effective Mar. 21, 2018), https://www.valleyair.org/rules/currntrules/r9510-a.pdf. 50

Id. at 1, 11–12. 51

Id. 52

Id. at 13.


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26

paying a fee to support off-site emissions reductions.53

If the indirect source is unable to reduce

its emissions through on-site measures, it must pay an off-site emissions reduction fee for each

ton of excess pollution it emits.54

San Joaquin Valley APCD uses 100% of the revenue it

receives from off-site fees to fund emissions reductions projects within the district.55

The

APCD’s indirect source review program has had a meaningful impact on diesel pollution in the

San Joaquin Valley. As of June 30, 2018, the program has prevented approximately 14,200 tons

of NOx and PM10 emissions through on-site mitigation measures and reduced another 8,600 tons

of NOx and PM10 through off-site emissions reduction projects.56

53

Id. at 11–12. 54

Id. at 13–16. 55

SAN JOAQUIN VALLEY AIR POLLUTION CONTROL DIST., 2018 ANNUAL REPORT: INDIRECT SOURCE REVIEW

PROGRAM at 4 (2018), https://www.valleyair.org/ISR/Documents/2018-Annual-Report.pdf. 56

Id.


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III. Propositions of Law

As required under OAR 137-001-0070(1)(c), petitioners submit the following propositions of

federal and state law that support the EQC’s authority to regulate emissions from indirect sources

to protect air quality in Oregon.

A. Federal Law: The Clean Air Act expressly authorizes state and local regulation of

indirect sources.

The CAA gives states broad discretion to adopt indirect source programs to control mobile air

pollution from mobile sources. CAA section 110 expressly authorizes states to regulate

emissions from “indirect sources” of air pollution.57

The CAA defines “indirect source” as “a

facility, building, structure, installation, real property, road, or highway which attracts, or may

attract, mobile sources of pollution.”58

Because an indirect source program imposes site-based emissions limitations or requirements,

rather than vehicle or engine-based requirements, state and local indirect source rules are not

preempted under CAA section 209, which prohibits states from adopting emission standards for

motor vehicles.59

Courts have emphasized that the Clean Air Act grants states broad discretion to

decide whether and how to regulate emissions from indirect sources.60

B. State Law: The EQC has broad statutory authority to regulate air quality.

The EQC has clear authority under Oregon law to adopt the proposed indirect source rules. The

legislature has provided that the EQC may establish by rule “areas of the state and prescribe the

degree of air pollution or air contamination that may be permitted therein, as air purity standards

for such areas.”61

Similarly, the EQC, by rule, may “require permits for air contamination

sources classified by type of air contaminants, by type of air contamination source or by area of

the state.”62

The EQC has already correctly determined that it has statutory authority to regulate indirect

sources, and it has exercised that authority, stating:

The Commission finds and declares Indirect Sources to be air contamination sources as

defined in ORS 468A.005. The Commission further finds and declares that the regulation

of Indirect Sources is necessary to control the concentration of air contaminants which

result from Motor Vehicle Trips and/or Aircraft Operations associated with the use of

Indirect Sources.63

57

42 U.S.C. § 7410(a)(5). 58

42 U.S.C. § 7410(a)(5)(C). 59

42 U.S.C. § 7543; see Nat’l Ass’n of Home Builders v. San Joaquin Valley Unified Pollution Control District, 627

F. 3d 730 (9th

Cir. 2009). 60

See Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, 963 F. Supp. 395, 407 (D.N.J. 1997), aff'd, 140 F.3d

478 (3d Cir. 1998). 61

OR. REV. STAT. § 468A.025. 62

OR. REV. STAT. § 468A.040. 63

OR. ADMIN. R. § 340-254-0010.


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The proposed rules in this petition build upon EQC’s existing regulatory framework and fall

squarely within the agency’s statutory authority.

IV. Conclusion

Mobile source emissions currently present significant threats to human health, particularly in

urban areas of the state, and are preventing Oregon from achieving its greenhouse gas reduction

targets. The proposed indirect source rule would work to reduce these harmful emissions at

locations and facilities that attract large numbers of vehicles or operate polluting engines or

equipment. Reducing emissions from indirect sources will improve air quality in urban areas,

support Oregon’s climate goals, and produce meaningful benefits for Oregonians who are

currently exposed to some of the highest concentrations of diesel pollution in the United States.

We therefore strongly urge the EQC to exercise its rulemaking authority and adopt the new

indirect source rule proposed by this petition.


Item M 000039

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